G OVERNING THE COMMONWEALTH

Only recently have we thought to raise the question of liberty in connection with Hobbes’ treatise on the commonwealth. For centuries, it was seen as a manifesto of subjection, certainly not without cause. Governed as it was by the imperative of putting an end to war, there seemed to be no place in Hobbes’s universe for man’s liberty. This impression is misleading, despite having been the conven-tional reading for centuries. Liberty is absolutely pivotal to the government of the commonwealth, but Hobbes can only develop a theory of liberty in the mar-gins of his work. In a sense, he is every bit as much a victim to the spell of self-preservation as we are. Having constructed society around the concern for sur-vival, he cannot move beyond the primordial situation of sovereignty to consider the life that unfolds within the commonwealth. Consequently, he cannot develop the considerations that are to govern the exercise of sovereign power. But such considerations exist. Having brought sovereign power into existence, Hobbes must show how it should be exercised so as not to be lost. This requires him to accommodate liberty in the government of the commonwealth.⁴

What is often overlooked is that liberty does not disappear with man’s pas-sage into society. This persistence of liberty makes sense once we take into con-sideration the theological foundations of power in Hobbes’ work. As Howard Warrender showed, the foundation of power proposed by Hobbes makes implicit reference to the voice of God, the only voice capable of commanding in the state of nature (Warrender, 1957, pp. 200, 207-209). God commands man to construct the sovereign of whom he shall henceforth be a subject. This is the passage from the Immortal to the Mortal God of which Hobbes speaks (Hobbes, 1994, p. 109).

What drives man to subject himself to a sovereign power is not self-preservation, as we are wont to believe; self-preservation is a duty towards man’s creator, not towards man himself. The constitution of sovereignty rests on an obligation that

4 This point has been made by various scholars in recent years. See Foisneau (2000), pp. 116-117; Sorell (2004), pp. 191-192.

wends from the innermost recesses of man’s being. The indications contained in Warrender’s work have been developed by other scholars, perhaps most impres-sively in the work of Luc Foisneau who has shown how Hobbes worked out the idea of sovereignty in a confrontation with and transposition of the scholastic no-tion of divine omnipotence (Foisneau, 2004, pp. 215-255, especially pp. 231-236). Republican theorists, most famously Quentin Skinner, have contested this reading of Hobbes. The gist of Skinner’s argument is that no-one in Hobbes’s own time, neither his followers nor his critics, picked up on the theological aspect of his theory. To impute to Hobbes a theory that was not only without resonance in his own time but, furthermore, he did not think to invoke in re-plying to his critics, is, Skinner argues, so historically implausible that, for this reason alone, the theological reading of Hobbes’s theory of political obligation must stand as discredited. However plausible it may be as a reading of the Levia-than, it comes at the price of removing “most of the points of contact between Hobbes and the intellectual milieu in which he lived and worked” (Skinner, 2002b, p. 285, cf. p. 282).

As Skinner himself seems to have retreated from this rather excessive em-phasis on context over the last decade, there is perhaps no need to rehearse the argument further beyond pointing out that Skinner is unable to maintain the line of demarcation between secular and religious argument, as he would have to in order to keep in place the republican genealogy of modern political thought. In Skinner’s account of the event he singles out as the relevant context of Hobbes’

theory of political obligation – the engagement controversy – the distinction be-tween religious and non-religious positions tends to break down. Not only did the “theologians” continue to take part in the controversy, even after it had sup-posedly metamorphosed from its initial, religious phase, but “lay apologists” al-so continued to invoke the providence of God in support of the “very different”

arguments which they advanced in support of engagement (Skinner, 2002b, pp.

299, 303).

Taking into consideration the theological dimension of sovereign power in Hobbes’ work not only allows us to make sense of this interplay of religious and secular arguments. It also allows us to make sense of what happens inside the commonwealth where subjection is, in fact, not total. As we have seen, Hobbes’

foundation of sovereign power is based on a parallel between God and the civil sovereign, but this parallel is not perfect. The sovereign commands as of right, but his right is not absolute. As a subject, man has a right he does not have as a man, that is, as a subject of God: the right of self-defence (Hobbes, 1969, p. 88;

Hobbes, 1966, pp. 177-178; Hobbes, 1994, pp. 82, 204.).⁵ Subjection to sove-reign power and the right of self-defence both reflect divine injunction. Man sub-jects himself to the sovereign because God commands him to preserve his life.

Subjection rests on the obligation of self-preservation. But as self-preservation is the basis of man’s political being, self-defence is not only a right of which he cannot be stripped; it is also an obligation he cannot shirk. It is the last vestige of the direct dominion that God exercised over man in the state of nature. As such, it reflects a religious dimension of human existence that cannot be appropriated by the sovereign; the only sacral dimension of human existence Hobbes recog-nizes. A good part of his work on the citizen, De Cive from 1641, is taken up by arguments to show that the political teachings of the Gospel consist simply in the injunction to obey ones temporal lords; faith commands nothing more than belief in the teaching that Jesus is the Christ; an argument Marsilius already used to counter the political ambitions of the Roman Church (Hobbes, 1966, pp. 281-281; pp. 420-428; Hobbes, 1994, p. 402-410; Marsilius, 1932, pp. 4-5). As the right of self-defence reflects God’s direct dominion, it takes precedence over all other legal and moral considerations. It applies even to the criminal who has been justly condemned to death for his crime. Not only does he have a right to defend himself; he even has a right to join with his like in armed combat against the commonwealth (Hobbes, 1994, pp. 143, 204).⁶

The importance of the matter is evident: recognizing that the individual has a right of self-defence poses an absolute limit to sovereign power.⁷ Perhaps more

5 I cannot agree with Luc Foisneau who seems to view the original compact as being founded on the unlimited power of the civil sovereign over the life and death of his subjects. See Foisneau (1997) pp. 300-302.

6 The opposition of sovereign power and the direct dominion of God over man can also arise in the shape of the martyr, who sacrifices his life for the glory of God and in de-fiance of the civil sovereign. Hobbes renders martyrdom political insignificant by his insistence that only him to whom the divine precepts have been supernaturally re-vealed must respect them as law in the proper sense of the term, in their immediate form (Hobbes, 1994, p. 259). As the Son of God has already come, Hobbes can thus limit the category of martyrs to those who have seen Christ in the flesh (pp. 340-341).

On this point, see Kodalle (1972), pp. 126, 155-158.

7 The right of self-defence mirrors the sovereign’s right to punish. As all sovereign rights arise through authorization by the subjects, we would expect the right to punish to be limited by their inalienable rights. But Hobbes vacillates on this point. At times, he extends the authorization of the sovereign to encompass the right to punish (Hobbes, 1994, p. 111); at other times, he conceives of the sovereign’s right to punish

importantly, it also draws attention to the fact that, unlike God, the civil sove-reign does not have an unconditional claim to obedience.⁸ But more is at stake in the question of self-defence than the limits of sovereign power. As self-defence reflects the persistence in society of God’s dominion over man, it imports into society the logic that governed interaction in the state of nature. Only this time, the relevant interaction is not that between men but that between subject and sovereign. By submitting to the Leviathan, man receives assurance against the threat that his fellow men pose to him by their very existence; but what of the threat that the existence of a sovereign power poses to him?

As man subjects himself to the sovereign in order to preserve his life, it fol-lows that any threat to his life from the sovereign liberates him from his bond of allegiance and reinstates him in the unlimited right that he enjoyed prior to his passage into society. On first reading, we would thus incline towards seeing self-defence as a legal safe-guard, posing a limit beyond which the sovereign cannot go. This is certainly the most obvious reading. But something more is going on in Hobbes’ text. The primacy of the obligation of self-preservation, in relation to which man is under the direct dominion of God, means that the very existence of sovereign power poses a threat to his existence. As there is no power on Earth to which man and Leviathan are both subject, and as man is sole judge of what is necessary to preserve his life where no common coercive power exist that can give him assurance, his interaction with the sovereign will, if it is left to run its natural course, invariably reproduce the oppositional patterns of the state of na-ture. His right to self-defence cannot be limited to certain categories of sovereign acts, as no power exists that can give him assurance that all other sovereign acts will not eventually be to his detriment. On the contrary, he must perceive every act by which sovereign power sustains itself as a threat to his own existence be-cause it can be used against him. Man’s right of self-defence must be, as his right

as an unfounded remnant of the right of nature (p. 204). The indeterminacy reflects the theoretical impossibility of reconciling sovereign power and the right of nature once they are brought into contact. Cf. Terrel (1994), pp. 243-244; Zarka (1995), pp.

242-245.

8 This view put Hobbes at odds with the English royalists who denied the right to self-defence against the King. See for example Clarendon (1676), p. 87. On the relation-ship of Hobbes to the royalist factions, see Hoekstra, (2004) pp. 37-38, 45-46; Lessay (1988), pp. 63-66; Sommerville (1992), pp. 35-37; Tuck (1993), pp. 312-313, 325-326.

of nature is, without limits.⁹ The impossibility of assigning any limits is reflected in Hobbes’ observation that the motive for which man transfers his right of na-ture to the sovereign is “nothing else but the security of a man’s person, in his life and in the means of so preserving life as not to be weary of it” (Hobbes, 1994, p. 82). The passage confers an almost hedonistic quality on a right that is only formally a subject of choice. Man must not only be secure in his existence;

he must also be satisfied with it. This shifts the perspective of the construction of commonwealth from the existence to the perception of sovereign power. Hobbes cannot alleviate the fear that sovereign power inspires by somehow curtailing it.

Within the limits that set by the right of self-defence, sovereign power must be absolute. Hobbes can only alleviate this fear by instituting a system of screens and mirrors in which man is not confronted with sovereign power. He lives his life in a sphere from which sovereign power seems to be absent, even if its juris-diction is not.

If we inquire further into Hobbes’ construction of the commonwealth, we find at its centre a sphere of individual action where man is free to do as he pleases and where the presence of sovereign power is not felt. The primary signi-fication of this liberty is corporal liberty, the liberty from chains and prison (Hobbes, 1994, p. 136). This determination corresponds to the primary objects of the right of self-defence: life and physical integrity. It circumscribes a sphere of action attached directly to the individual. But as we proceed, we find that liberty’s domain extends beyond this narrow definition:

“The liberty of the subject lieth, therefore, only in those things which, in regulating their actions, the sovereign hath praetermitted [omitted] (such as is the liberty to buy, and sell, and otherwise contract with one another; to choose their own abode, their own diet, their own trade of life, and institute their children as they themselves think fit; and the like).”

(Hobbes, 1994, p. 138)

The liberty of the subject comprises more than his life and his movements. It en-compasses a series of contingent, yet essential aspects of human life: property,

9 This dimension disappears from view in the work of Jean-Jacques Rousseau, for whom the alienation of man’s being to society comprises the whole of his former, na-tural state, including the biological fact of being alive which, to Hobbes, is the umbili-cal cord that tied the subject to the man. To Rousseau, the sovereign is entitled to de-mand that a citizen lay down his life in the interest of the state. With the passage into civil society, biological existence ceases to be a “bounty of nature;” henceforth it is a

“conditional gift of the state,” one that can be taken away (Rousseau, 1964, p. 376).

the choice of abode, diet, trade and the up-bringing of one’s children. The rather off-hand manner in which Hobbes determines the liberty of the subject should not mislead us about its significance. The imperative of edifying and consoli-dating a sovereign power means that Hobbes can only introduce these aspects of human existence in the margins of his theory of commonwealth. They are none-theless essential to the workings of the society that unfolds under the rule of the sovereign. Through the cursory indications of Hobbes we begin to perceive that it is not mere existence but life that unfolds within the commonwealth. Around the kernel of natural right – life and physical integrity – a wider sphere of human existence lies. The activities that take place within this arena have all been “prae-termitted” by the sovereign; in other words, they have not been made the object of sovereign decision. Man’s action within this sphere is not determined by law, not because law has lost its force, but because it is not immediately present. The

“praetermitted” actions fall below the threshold of law: “As for other liberties [than the liberty to defend oneself against attack], they depend on the silence of the law. In cases where the sovereign has prescribed no role, there the subject hath the liberty to do or forbear, according to his own discretion” (Hobbes, 1994, p. 143). The jurisdiction of sovereign power is unchanged; its impact on human existence is not. Man is legally bound to obey the sovereign in all aspect of his existence, but sovereign power is not manifested in all dimensions of the com-monwealth. It is hidden from view such that man feels at liberty, despite the fact that, as a matter of law, he is not.

The relationship of subject and sovereign is mediated by a triadic structure that can be teased out of Hobbes’ text: 1) at the core, a sphere that attaches im-mediately and directly to the individual. This sphere revolves around the life and bodily security of the individual and it is governed by the right of nature. 2) A wider sphere, in which man is free to live as he pleases, provided that the laws are silent. And 3) the sphere of law, seen as the expression of sovereign will. Of these spheres, only the first and the third, respectively the spheres of natural right and civil law, are engaged in the institution of the commonwealth. They are, by their very nature, contradictory but must nonetheless be brought to coincide in theory if the commonwealth is to maintain itself. In the account that Hobbes gives of the genesis of the commonwealth, he relies on the fiction of the state of nature to align the complete liberty that is the essence of the right of nature on the total submission that is the essence of civil law. This does not address the question of how men are to live together once they have made the passage into society. If the existence of sovereign power is a condition for peace, it is the ex-istence of a sphere of individual liberty unchecked by sovereign power that al-lows Hobbes to show how natural right and civil law might align in government.

Within the commonwealth, the coincidence between natural right and civil law cannot be complete because, on the terms stipulated by Hobbes, the passage into society is never complete. Man will always carry within himself a dimension of liberty that the civil sovereign cannot appropriate. But the nexus of natural right and civil law can be managed so that the non-coincidence is not (too) manifest.

A balance between natural right and civil law can be struck if society is con-structed in such a way that, for the most part, man will not have to act under a direct threat to his life, nor under the compulsion of civil law. If he perceives himself to be acting freely, according to his own will and to his own desires, the existence of sovereign power will not be seen to constitute a threat to his free-dom, and the opposition between natural right and sovereignty will not be felt to be a problem, even if it cannot be resolved.¹⁰